On April 22, a three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an order unanimously vacating and remanding the December 31, 2009 decision of Judge Ricardo Urbina in the Blackwater Raven 23 case for further consideration in accordance with its instructions.
As noted in Judge Urbina’s ninety-page decision, the case had involved members of a Blackwater tactical support team referred to as Raven 23. Their function had been “to provide back-up fire support for other Blackwater personal security details operating in Baghdad.”
The Raven 23 convoy consisted of four vehicles. Defendant Ball functioned as the rear turret gunner on the lead vehicle. Defendants Liberty, Slough and Slatten were positioned in the third vehicle as the driver, turret gunner and designated defensive marksman (or sniper) respectively. Defendant Heard was the rear turret gunner in the fourth vehicle. Jeremy Ridgeway, who pleaded guilty to charges stemming from the incident and has been cooperating with the government, functioned as the lead turret gunner in the fourth vehicle. The defendants were armed with machine guns, grenade launchers, rifles and pistols.
Shortly before noon on September 16, 2007, Raven 23 received a message that a vehicleborne improvised explosive device (“VBIED”) had detonated in the vicinity of a compound in which U.S. officials were meeting with Iraqi officials. The Raven 23 convoy subsequently took up positions in Nisur Square, a traffic circle located just outside the International Zone in downtown Baghdad, to secure an evacuation route for the American officials and the Blackwater team providing their security. Soon after the Raven 23 vehicles entered the traffic circle, a shooting incident erupted, during which the defendants allegedly shot and killed fourteen persons and wounded twenty others. The government contends that the dead and wounded were unarmed civilians who were the victims of unprovoked violence by the defendants. The defendants maintain that they came under attack by insurgents and that their actions constituted a legitimate response to a mortal threat.
The paroxysm of violence that occurred on September 16, 2007 in Nisur Square triggered immediate responses that would have far-reaching consequences [internal citations omitted].
In a decision dismissing the indictment on which the defendants were to be tried, the trial judge set forth in substantial detail a surprisingly high level of repeated prosecutorial misconduct. I thought (and still think) that his was a well reasoned and fair decision and was surprised that the appellate court overturned it unanimously. Most of the apparently juicy bits of the April 22nd Court of Appeals decision were redacted. To the (unknowable) extent that the appellate court’s decision is based upon those redacted bits, it is incomprehensible.
The proceeding had a lot of baggage from the beginning, much of it unethical and some of it just plain stupid. That baggage — I reviewed some of it here and here — grew heavier with repeated incidents of prosecutorial misconduct. The sloppy work done during the post-incident investigation tainted the evidence found not only then but during subsequent investigations. The baggage accretion process continued even after Judge Urbina’s decision had been issued on the last day of 2009. On January 22, 2010, Vice President Biden told the president of Iraq that the United States would appeal Judge Urbina’s dismissal of the case. He also apologized publicly for the “misconduct” of the defendants and also, it seems, for that of the trial judge:
With Iraqi President Jalal Talabani at his side at a Baghdad news conference, Biden expressed “personal regret” for the violence in a Baghdad traffic circle where Blackwater guards were accused of opening fire on innocent civilians.
“The United States is determined, determined to hold accountable anyone who commits crimes against the Iraqi people,” Biden said.
“While we fully respect the independence and integrity of the U.S. judicial system, we were disappointed by the judge’s decision to dismiss the indictment, which was based on the way in which some evidence had been acquired,” Biden said.
Apologizing to the people of Iraq for the results of a criminal proceeding in a United States federal district court, with which many of them are unhappy and anxious for reinforcement of their views, may help foreign relations. It may be good politics. Yet the United States is not obliged to tailor its judicial proceedings to that end and our courts should not be obliged to do so; members of the executive branch should occasionally be reminded that the judicial branch is separate, distinct, and independent. The sort of statement made by the vice president — unlikely to have read the trial court’s lengthy opinion, or to have understood it if he had — could reasonably be interpreted as marching orders from on high, to be obeyed by underlings regardless of the facts and the law. And, as noted here,
Following the December 31 dismissal, a meeting among defense attorneys and personnel of the Justice Department’s national security division had been scheduled. However, the meeting was canceled prior to VP Biden’s announcement that an appeal would be filed:
[The] meeting between defense attorneys and the national security division of the Justice Department to discuss whether an appeal was warranted was canceled before Biden’s Saturday announcement. [One of the defense attorneys] said the defense was told that the national security division “no longer had any meaningful input into the decision.”
The plan to appeal was later confirmed, and on January 29 the national security division (NSD) initiated the process by filing a notice of appeal.
Members of the Blackwater Raven 23 tactical support team had been charged in one indictment issued by one grand jury. In an effort to fix numerous problems with tainted materials presented to that grand jury, the materials were later presented, with “substantial” omissions of exculpatory materials, to another grand jury which issued a second indictment. The problems were numerous, but most involved statements given to investigators by the defendants shortly after the Nisur Square incident, under written promises of testimonial immunity and in the face of threats of firing unless they cooperated by giving statements. These circumstances set the stage for prosecutorial misconduct in using those statements for investigative purposes against the defendants and in presenting the information so obtained to first one and then the second grand jury in a politically charged context involving the relationship between the United States and Iraq. The case did not get to a jury in Judge Urbina’s court because preliminary issues involving the lawfulness of the indictments on which the defendants were to be tried had to be resolved first. That involved analysis of the evidence presented earlier to the grand juries. Since Judge Urbina dismissed the indictments based on that evidence, the case did not go to trial.
As noted in this Wall Street Journal article, analyzing and quoting liberally from the trial judge’s opinion,
Judge Urbina dismissed the charges because prosecutors misused sworn statements the guards were compelled to make to investigators after the shooting, under the threat of job loss. This was routine practice under military contracting rules, though the statements could not be used in criminal prosecutions. Promptly after the Nisour incident these statements were also leaked to the media, which ran with the narrative of modern-day Hessians gone berserk.
“In their zeal to bring charges against the defendants in this case,” Judge Urbina ruled, prosecutors had violated Fifth Amendment protections against self-incrimination by using these compelled statements to formulate their case and ultimately obtain indictments against the guards. The judge calls it “the government’s reckless violation of the defendants’ constitutional rights.”
Because of prior contact with the compelled statements, the Justice Department’s entire criminal division had recused itself from the case, which was handed over to national-security prosecutors and later to Assistant U.S. Attorney for the District of Columbia Kenneth Kohl. The veteran Justice public-integrity lawyer Raymond Hulser was eventually assigned to lead a “taint team” to rebuild the case without using the off-limits statements, and he repeatedly warned the trial team that their evidence was “thoroughly tainted.”
“By all accounts these prophylactic measures fell well short of expectations,” Judge Urbina notes with some understatement. In “direct contravention of the clear directives” of Mr. Hulser, the statements were used to obtain a search warrant against Blackwater, figured into plea discussions, and exposed in testimony to the grand jury, forcing Justice to withdraw the case and present it to a new panel.
In the second round that featured redacted testimony from the first grand jury, prosecutors also excised what Judge Urbina calls “substantial exculpatory evidence.” The judge goes on to say that Justice’s “inconsistent, extraordinary explanations” for its conduct “smack of post hoc rationalization and are simply implausible,” and ultimately “lacking in credibility.”
Under the Court of Appeals remand order issued on April 22, it all now goes back into Judge Urbina’s lap. He will assess the specific impact, if any, of the prosecutorial misconduct on each of the defendants individually. That will be a very difficult, if not impossible, task. There seems to be little evidence as to which of the defendants, while acting jointly as members of a team, actually fired which shots striking whom or the circumstances under which they individually did so. As observed by the government before the grand jury, it was “charging [the defendants] jointly, with each of these shootings because they’re working together.” Here is the final paragraph of the order giving Judge Urbina his frogmarching orders:
We thus vacate and remand the case for the court to determine, as to each defendant, what evidence—if any—the government presented against him that was tainted as to him, and, in the case of any such presentation, whether in light of the entire record the government had shown it to have been harmless beyond a reasonable doubt [emphasis added].
Determining which bit of evidence pertained to which individual defendant will necessarily require more dart board expertise than judicial expertise.
There is another problem. Normally, the compelled testimony of one suspect can be used against a different suspect in a different proceeding. However, when the defendants who gave statements were all subjects of the same grand jury proceedings it’s more difficult. If the case ever goes to trial, the defendants will presumably be tried together again before one jury; then it will be even more dicey. Merely instructing the jury that it may consider defendant A’s statement and its evidentiary fruits against defendants B, C and D, but may not consider those against A himself, probably won’t work. This is an even greater problem when, as here, A, B, C and D all are alleged to have committed their offenses together as a team, simultaneously and in what they claim to have been the heat of combat. Of course, if A, B, C and D were not in danger, but merely shot people for the fun of it and lied to avoid punishment, this problem might seem less significant. That is probably not what happened at Nisur Square.
The prosecution will have a modest burden to carry at least as to some of the evidence. For example,
[O]nly if the government on remand fails to establish by a preponderance that Frost would have written the journal or testified in the absence of exposure to defendants’ immunized statements would use of the journal and testimony be barred under Kastigar. Of course, the defendants’ communications transmitted to Frost via the media are relevant against the government in this analysis only to the extent that they actually added to the information flowing through from non-defendant sources [emphasis added].
It seems at least possible that Frost (who kept a diary and testified before the grand juries) attributed more credibility to portions of the defendants’ firsthand accounts of the Nisur Square events than to second, third and fourth hand reports typically found in media accounts. It also seems likely that he considered the defendants’ statements as reinforcing consistent media reports (themselves to some extent based on the defendants’ leaked statements). How could Frost now reasonably decide what he would have done some four years previous had the circumstances been different? If he testifies that he was in no way affected by the immunized statements or evidence obtained on the basis of them, how is his own current reconstruction of his earlier state of mind to be successfully rebutted or challenged on cross examination by the defense? It would be difficult to find a witness other than Frost competent to testify to his mental processes four years ago, and to how he would have behaved had circumstances been materially different. The prosecution and the defense have some tough rows to hoe.
It’s been a long time since I had any involvement in criminal proceedings, but it strikes me that to exhume this can of worms at this late date, and to require the defendants to experience again the same expense and unpleasantness as before, is unconscionable. If, as is quite possible, the trial judge again strikes the indictment, the government will have to decide whether to appeal again or to seek yet another indictment. If there is yet another indictment, there will be another judicial inquiry into its suitability. In either event the farce will continue. Should the judge allow the proceeding to go forward on the earlier indictment or on a new indictment, and should the government win convictions at trial, the nature and duration of the appellate process will be difficult to predict — except that it will take a very long time and cost lots of money.
The prosecution had two bites at the grand jury apple — and at trying to show that it was not so wormy as to be inedible. That should be enough, the dissatisfaction of Iraqis and of the Obama administration notwithstanding.